Posts Tagged ‘charitable lead trust’

Here’s an estate planning question we get asked a lot: if you have created a revocable living trust and transferred essentially all of your assets to the trust’s name, should you also make the trust beneficiary of your IRA, 401(k) and other retirement accounts? It’s a great question, and difficult to answer without referring to your own situation. Does your trust continue for the benefit of children or grandchildren? Are there charities named as beneficiaries in your trust? Are you single? If you are married, is the trust a joint trust between you and your spouse? Do you have an estate large enough to be taxable? Are your children about the same age, or is there a significant age span among them? Are they going to receive your estate in equal or unequal shares? All of those questions and a few more are important when deciding whether to make your trust the beneficiary of your IRA.

We were thinking about this issue while reading a recent case decided by the Arizona Court of Appeals. It involved a substantial IRA and a change in the precise language of the beneficiary designation shortly before the owner’s death. The case ultimately turned on the evidence of the owner’s actual intention, but the unintended ambiguity introduced in the beneficiary designation should give every IRA owner (and every estate planner) pause.

Frank Merriwether (not his real name) married Melissa late in life, after the death of his first wife. Melissa died, tragically, of breast cancer just five years after their marriage. Frank wanted to leave something to the Arizona Cancer Center in Tucson, hoping that research into breast cancer causes and treatment might make a difference in the future.

Frank and Melissa had established a joint trust which, upon Melissa’s death, divided into two separate trusts. One, the “Survivor’s Trust,” could be amended by Frank. If he did not amend it, the Survivor’s Trust indicated that fixed dollar amounts would be divided among several recipients, including $100,000 to the St. George Antiochian Orthodox Church. After those specific distributions, the residue of Frank’s share of the trust would be distributed to a “Charitable Trust” described in the trust document — a trust set up as charitable lead trust.

Shortly before Melissa’s death, Frank changed the beneficiary designation on his IRA account to name Melissa as first beneficiary, and the “[Merriwether] Charitable Trust as specified in [the trust document]” as contingent beneficiary. After Melissa’s death, he changed the beneficiary designation to the “[Merriwether] Charitable Trust as specified in para 8 of [the trust document].” Part of his thinking, according to the financial adviser who handled his IRA, was that he could make future changes in the beneficiary designation by amending his trust, without having to fill out the paperwork with the stock brokerage acting as IRA custodian.

A few years later Frank’s financial adviser changed firms. As part of the shift to the new brokerage company, Frank’s beneficiary designation was changed to the “charitable organizations as called out in the [Merriwether] Survivors Trust UAD 6-1-2005.” That, according to Frank’s stockbroker, was intended to refer to the charitable trust in Frank’s trust document, and to, again, allow him to make beneficiary changes without having to fill out the beneficiary designation form. Shortly after that form was completed, Frank amended his trust to make the Arizona Cancer Center the sole beneficiary of the charitable trust. Frank died just six weeks later.

As successor trustee of the trust, Frank’s nephew made a distribution of $100,000 to the St. George Antiochian Orthodox Church. The Church, however, argued that it was one of the “charitable organizations as called out in the” Survivor’s Trust, and should share in part of the rest of the distribution. The trustee disagreed, and the dispute went to court.

The trial judge ruled that the beneficiary designation was ambiguous, and that it could consider other evidence of Frank’s intention in deciding what the designation meant. With the testimony of his stockbroker, it was clear that Frank intended the money to go to the Arizona Cancer Center, and the judge ordered the trustee to follow his wishes. St. George Antiochian Orthodox Church appealed.

The Arizona Court of Appeals upheld the trial judge. The appellate judges agreed that the evidence of Frank’s intention was clear, after consideration of his stockbroker’s testimony. The only real question was whether it was permissible to consider that evidence. The general rule of law, ruled the appellate court, is that you look only to the written documents to determine intent — unless the evidence is ambiguous, in which case you can consider other evidence. In this case, the language of the beneficiary designation created an ambiguity that permitted the stockbroker to explain Frank’s wishes. The church lost, and was even ordered to pay a portion of the University of Arizona’s legal fees. In the Matter of the Estate of Maynard, November 21, 2013.

We always try to extract deeper meaning from the appellate cases we describe. Is there a broader lesson for someone in Frank’s position, or for the stockbroker, or for the lawyer (we can only assume that a lawyer was involved) who prepared Frank’s estate plan? Perhaps we can suggest a couple of points:

When changing beneficiary designations — even if it is a simple change occasioned (as Frank’s was) by a change from one IRA custodian to another — it might make sense to send the new beneficiary designation to your lawyer for review and suggestions. Frank’s earlier beneficiary designations looked much better than the final one, and his lawyer might have made a simple suggestion that could have saved tens of thousands of dollars in legal fees.

When naming a trust as beneficiary of an IRA, it is easier if you can name the entire trust, perhaps like this: “The Jones Family Trust Dated ______, as it may be amended from time to time.” Of course, that wouldn’t have accomplished Frank’s intention. If a sub-trust of the Jones Family Trust is being named as beneficiary, it makes sense to give it a name in the trust document and then refer to that name. That’s essentially what Frank’s first beneficiary designation did, and the second one was even better.

When you are leaving a substantial IRA to a sub-trust, you might consider creating a separate, stand-alone trust. If, for example, Frank had created the Merriwether Charitable Trust Dated ____, his main trust could then have left a share to that trust — and his IRA beneficiary designation could have named that separate trust, leaving no room for ambiguity.

Of course, all of this assumes that it is appropriate to name the trust as beneficiary of the IRA in the first place, and that isn’t always the case. That takes us back to our opening observation — this question is very fact-specific, and be very careful about how you handle beneficiary designations.

NOVEMBER 22, 2010 VOLUME 17 NUMBER 36
Our clients usually have similar goals in their estate planning. They want to take care of their children. They may want to leave something to charity. They usually want to minimize taxes that they, their estate or their beneficiaries might have to pay. And they often tell us they want to make sure there is no quarrel among their beneficiaries, and that the process will not be contentious. We tell our clients that we understand, and that we will do what we can to meet those goals, but that the last one is hard to assure. We have no control over what the beneficiaries might do, and we simply can not promise that there will be no contest or litigation.

Will contests are actually quite rare. Contests over living trust provisions are even rarer. There are three good reasons that they are rare:

The wills and trusts are usually valid, and any contest would be frivolous. It’s actually hard to win a proceeding contesting a well-drafted estate plan.

Most people leave the bulk of their estate to the same heirs who would receive it if they did not prepare a valid estate plan. No one has any reason to contest your will if they would get exactly the same amount even if they could prove the will was invalid.

The amount of money involved is most often not worth the legal expense — particularly if the likelihood of success is not good.

Sometimes, though, the amount of money, the change in distribution plans and the circumstances lead one or more beneficiaries to challenge the validity of a will or a living trust. They usually do not prevail — especially if the documents were carefully drafted and executed under the supervision of a competent attorney. But they may still raise the challenge.

That was what happened with the beneficiaries of Mercedes Kibbee’s estate. Ms. Kibbee lived in the small town of Sheridan, Wyoming. Her late husband Chandler Kibbee had been an important business executive, and the couple had ranched in Wyoming for years. In fact, Ms. Kibbee was worth about $32 million.

In 1996, after her husband’s death, Ms. Kibbee signed a trust which (at her death) would have left a trust for her daughter paying $50,000 per year, and divided the rest of her assets between trusts for her son and for her granddaughter (her daughter’s daughter). Her son and granddaughter had powers of attorney to handle both financial and health care issues for her, and were named as successor trustees. That would have exposed her estate to a substantial estate tax liability (depending, of course, on the year in which she died) of as much as half of the total estate.

In 2005 Ms. Kibbee fell and broke her hip, and ended up in a nursing home for rehabilitation. She wanted to return home, and she believed she had plenty of resources to provide whatever care she needed in her home. Her son and granddaughter thought she should stay in the care facility, and they arranged to take over as trustees of her trust and to keep her at the nursing home.

With the help of a long-time secretary and bookkeeper, Ms. Kibbee made contact with a local Wyoming attorney, Deb Wendtland. Ms. Wendtland helped Ms. Kibbee revoke the powers of attorney and remove her son and granddaughter as co-trustees of her trust. Instead she named herself and a local bank as co-trustees, and she returned to her home. The bank officer and Ms. Wendtland discussed her estate planning with her, and pointed out that she would be liable for a huge estate tax bill if she did not make changes to her documents. She was very disturbed by that prospect and asked the two to contact an estate planning lawyer to help organize her plans.

Robert H. Leonard, an experienced estate planning lawyer from Laramie, Wyoming, began visiting with Ms. Kibbee. Mr. Leonard was chosen because he was recognized as an authority on estate planning; he is, for example, a Fellow of the American College of Trust and Estate Counsel (ACTEC). At about the same time Ms. Kibbee asked her local lawyer, Ms. Wendtland, to make contact with Ms. Kibbee’s daughter and get her to visit and help with arrangements.

After many visits and much discussion, Ms. Kibbee signed a series of documents prepared by Mr. Leonard and Ms. Wendtland. She adopted a fairly complicated estate plan, which included charitable remainder trusts for her son and daughter, charitable lead trusts for her granddaughter and great-grandson, and a charitable foundation to receive much of her estate. Each document was carefully explained to her before signing, and her questions indicated that she understood them and agreed. Each document was reviewed with one or both of the attorneys and her bank trust officer. The entire plan was explained to her children and granddaughter as it was adopted.

Notwithstanding all of those careful plans, Ms. Kibbee’s son filed a challenge. He objected to the change in his mother’s estate plan, and particularly alleged that her daughter had unduly influenced her to make the changes. He argued that by the time of the signing she had become incompetent, and that the plan reflected her daughter’s wishes rather than her own. He filed his action while his mother was still alive, and argued that the successor trustee provisions should become effective immediately.

Ms. Kibbee, through her lawyers, answered the allegations and countered that she was fully competent and the planning reflected her own wishes. Unfortunately, Ms. Kibbee died just two months after her son filed his challenge.

It took more than two years to frame the legal issues for resolution, but in 2009 the trial judge dismissed all of the son’s allegations. He appealed, but the Wyoming Supreme Court agreed with the lower court and let the dismissal stand.

The preparation of Ms. Kibbee’s estate plan was comprehensive, thoughtful and reflective. It involved two different lawyers discussing her wishes with her, as well as a trust officer who was very familiar with her finances (and, by that time, with her family). She expressed her wishes clearly and consistently. On some issues, when she wasn’t sure how she wanted to proceed, she asked thoughtful questions and had heartfelt discussions with her advisers. In short, it is hard to imagine how a physically frail but mentally alert elder could have done better at addressing a complicated and difficult subject. The contest was not successful, but it was not prevented, either.

Two vignettes stand out in the Wyoming Supreme Court’s recitation of the case:

When Ms. Kibbee was considering whether to leave significant sums to the local YMCA for the benefit of youth programs, her advisers arranged for a group of children to visit her ranch house. They played in the pool, enjoyed a barbecue and chatted with Ms. Kibbee as she sat on her terrace in her wheelchair. She asked if they could return the next weekend.

When her attending physician was asked about her mental status, he described an inquisitive, playful, alert elderly woman who not only answered his questions but also challenged him. “…she had wit and intelligence, and I thought that she had kind of an ironic sort of personality where she would be almost like she was testing me,” said her doctor. “I was the so-called tester, and she was testee; but she had turned it around.”